124 S.E. 738 | N.C. | 1924
The action is by certain citizens and taxpayers of Wake County to restrain defendant board from contributing $41,500 towards the construction or renewal and repair of the road leading from Raleigh east through the county of Wake, being known in time past as the old Tarboro Road and designated also locally and in the record as the Milburnie Road. On the hearing the court entered judgment as follows:
This cause coming on to be heard upon complaint, answer and affidavits, and upon plaintiffs' prayer for an injunction until the final hearing enjoining and restraining defendants from contributing $41,500.00 toward the construction of what is described in the pleadings as the Milburnie Road; and the court having given a full hearing, and being of the opinion, upon the admitted facts in the case, that plaintiffs are not entitled to an injunction to the hearing, and not entitled to the relief prayed for in their complaint:
Now, therefore, it is ordered, decreed and adjudged by the court that the preliminary restraining order hereinbefore granted be and the same is hereby dissolved, and that the action be dismissed, the injunctive relief being the basis of this action.
It is further adjudged that defendants recover of the plaintiffs and the surety on their prosecution bond the costs of the action, to be taxed by the clerk of the court.
This is the final judgment in this action.
HENRY A. GRADY, Judge Presiding.
Plaintiffs, having duly excepted, appealed.
In the location of route No. 90 of the State highway system, running from Raleigh through Wake County and into the eastern section of the State, there were two routes suggested and available between Raleigh and the town of Wendell, about 18 miles east — one *381
known locally as the Milburnie route, and the other the Pool route — both being public highways, for the repair and maintenance of which the county of Wake is responsible. From a perusal of the pleadings and affidavits it reasonably and satisfactorily appears that while the two routes are about the same distance, the upkeep and maintenance of the Milburnie Road is a much greater burden to the county of Wake, and its present condition is such that extensive expenditures are presently desirable, if not necessary, to put said way in a safe and proper condition for travel. Among the changes considered presently desirable and necessary in the near future were the removal of some dangerous curves in the road, the substitution of substantial and adequate bridges over Neuse River and Crabtree Creek, and also the removal of a dangerous grade crossing over the Norfolk Southern Railway; that the adoption of the upper or Milburnie route, and of making the same a part of the State highway system, would relieve the county of the large expenditures required by the above alterations, as well as from the exacting burden of maintaining the road in the future. It further appears, by official survey and estimates, that the cost of the Milburnie route will exceed that of the Pool route by the amount of $41,500.00, but that the new and commodious hard-surface road to be built by the Highway Commission on the former would be of greater service to much the larger number of the citizens of Wake County than on the other. In the presence of these conditions, the State Highway Commission adopted the Milburnie or upper road from Raleigh to Wendell as part of route 90 of the State highway system, on defendant board agreeing to contribute the $41,500.00 as a proper liability and proportion of the cost of construction and repair to be borne by the county of Wake. It is objected for appellants that the commissioners are without power to make the contribution, same not being for a necessary expense of the county, and no vote of the people having been taken thereon; but, in our opinion, the objection cannot be sustained. Unless otherwise directed by express legislation, the supervision and control of county roads and responsibility for their construction and maintenance is placed with the board of commissioners. It is so provided in our Constitution and emphasized by the general legislation on the subject (Constitution, Art. VII, sec. 2; C. S., 1297, subsecs. 18-19); and in C. S., 1325, these boards are "invested with full power to direct the application of all moneys arising by virtue of (this chapter 24) for the purposes therein mentioned, and to any other good and necessary purpose for the use of the county." So all-pervading and insistent is the power of county commissioners on the question of public roads that, although special legislation may disclose a purpose to supervise and control the matter of roads by other boards, as the township *382
system, unless clearly forbidden by such legislation, the county commissioners could lend proper aid to this effort by appropriating general county moneys for the purpose. Bunch v. Comrs.,
These municipal boards, as we have uniformly held, are, in matters governmental, mere agencies of the State for the convenience of local *383
administration in designated portions of the State territory; and in the exercise of their ordinary governmental function they are subject to almost unlimited legislative control, except when restrained by constitutional provisions. Under the Highway Act, it was perfectly competent, therefore, for the Legislature to authorize, as they have done, the acquisition of these roads, and by the same token the county board is allowed to contract with them for its purchase, maintenance and upkeep of the road for which they were then responsible. Granted the power, it is fully established that its discretionary exercise is for the commissioners, and the courts are not permitted to interfere unless their action is so unreasonable as to amount to an oppressive and manifest abuse. Peters v. Highway Commission,
Affirmed. *384
